1990 PLP 1495 (MLD)

The FIR Ex. P.D. in this case was lodged at the Police Station by Ata Muhammad, PW 7, a real uncle of the deceased at 5-30 p.m. and the same was recorded by Muhammad Hussain, Sub-Inspector, PW

9. In brief, the prosecution case, as disclosed in the FIR by the complainant Ata Muhammad, was that he was a resident of Wandi Jhando where he cultivated his land. Deceased Subah Sadiq was his nephew and at about Digerwela on the fateful day (i.e. 30-11-1985) deceased Subah Sadiq was proceeding to the shop of Gulzar for making certain purchases and when he reached near the Baithak of Dil. Sher, the appellant who had hidden .himself near the Baithak suddenly attacked the deceased and inflicted a knife blow on the left flank of the deceased. On the receipt of this injury, the deceased fell down and the occurrence was seen by Ghulam Qasim, PW 8 and Gulistan CW 1, who were standing outside the shop of Rustam, where they had gone to make purchases. According to the complainant, both these witnesses rushed to the scene of occurrence to rescue the deceased but the appellant escaped from the scene of occurrence. The first informant. Ata Muhammad, PW 7, the uncle of the deceased was not an eye-witness but on the receipt of the information about the occurrence, he reached the spot and then the deceased was taken to Saidwala Dispensary on a cot, but on the way, Subah Sadiq deceased succumbed to his injuries and thus, his dead body was brought back to the village and thereafter, the first informant left for the police station to lodge the FIR. The motive for the commission of crime'as disclosed in the FIR was that the appellant suspected that the deceased had illicit liaison with Mst. Bashiran; a daughter of Umer Hayat, the maternal uncle of the appellant who had been betrothed with the appellant and thus on account of the said grouse, the appellant had killed the deceased.

3. Os 1st of December, 1985, PW 6 Dr. Zafar Ullah Sheikh, Medical Officer, Civil Hospital, Kallur Kot conducted the autopsy on the dead-body of the deceased and the following injury was noticed:-- "A stab wound 5 c.m. x 2 c.m. on the outer left lower chest (left hypochondrium of the abdomen) 11 c.m. above the illiac crest, 11 c.m. from midline and 17 c.m. below the left nipple. Omentum and intestine were protruding through the wound also." There was a cut in the wall at the 9th and 10th inter-costal space on the left side of the chest under injury No.

1. Left side of the left pleura was found cut. The peritoneum had also been cut on the left side. The diaphragm was also found cut. In the opinion of the doctor, the death had occurred due to shock and severe bleeding from the spleen caused by injury No.

1. The injury No. 1 was caused with a sharp-edged weapon and was sufficient to cause death in the ordinary course of nature.

4. On 1st of December, 1985, Muhammad Hussain, S.I., PW 9, arrested the appellant near Mor Abbasian and at the time of his arrest, blood-stained knife P.4 was recovered from the pocket of his shirt, which was taken into possession vide memo Ex. P.E. attested by Ghulam Qasim P W 8 and Gulistan CW 1 beside the investigating officer. The blood-stained knife was sent to the Chemical Examiner and the Serologist and according to the opinion of the former, it was stained with blood while according to the opinion of the latter, it was found to be stained with human blood. To prove its case at the trial, the prosecution placed reliance upon the ocular testimony furnished by Ghulam Qasim, PW 8 while an other eye-witness Gulistan named in the FIR was given up as having been won over. During the trial, Gulistan given up eye-witness, was summoned by the Court as Court witness. In addition to the ocular testimony furnished by Ghulam Qasim, PW 8 and Gulistan CW 1, the prosecution also placed reliance upon the recovery of blood-stained knife from the pocket of the appellant as a corroborative piece of evidence. The medical evidence was also pressed into service to show that the injury had been caused with a knife.

6. When examined under section 342, Cr.P.C. the appellant specifically denied the motive as alleged by the prosecution and stated that aforesaid Mst. Bashiran was hardly 7/8 years old, thus, the deceased could not have any illicit liaison with her. It was further stated by the appellant that he had been falsely involved due to party faction and enmity with Shaukat Hayat, Lumberdar. No defence evidence was led.

7. With the assistance of the learned counsel for the appellant, State and the complainant, I have carefully perused the record of the case and I have also heard the various contentions raised at the bar.

8. The learned counsel or the appellant has confined himself to twofold arguments in this case; firstly; he stated that there was a solitary injury and had the appellant intended to cause death, he could have repeated the blows, therefore, the offence according to the learned counsel for the appellant, does not fall within the purview of section 302, P.P.C. but only offence under section 326, P.P.C. had been committed. Consequently, the learned counsel for the appellant contended that the witnesses in this case could not be relied upon, inasmuch as, they were chance witnesses and had failed to render satisfactory explanation about their presence at the scene of occurrence. The learned counsel for the appellant also attacked the recovery and stated that the same could not be believed because according to the investigating officer, the appellant had led the police and got the knife recovered; whereas, according to the recovery memo the blood-stained knife was recovered from the pocket of the appellant during his personal search.

9. After anxious consideration and careful perusal of the record, I am of the view that none of these contentions has any force. A man intends the natural consequence of his act. Though, the appellant inflicted a single blow yet it extensively damaged the various organs of the deceased and the death had taken place on account of severe haemorrhage due to the cut of spleen and, therefore, by no stretch of imagination, it can be held that the appellant had not intended to cause death and was only guilty under section 326, P.P.C. Adverting to the ocular testimony in this case, if at all the prosecution wanted to fabricate the evidence, it could have produced Ata Muhammad, the uncle of the deceased, as an eye-witness, who reached the scene of occurrence after 10/15 minutes. The bona fides of the prosecution in this case is evident, it only produced those witnesses who had in fact seen the occurrence. The village known as Wandhi Jhando consists of 300 houses while Abadi of Jhando Dakhli consists of 10-15 houses. It is pertinent to mention that both the eye-witnesses are residents of Wandhi Jhando. Ghulam Qasim, PW 8, although, he is related to the deceased, stated that he had gone to the shop of Rustam to make certain purchases an since the shopkeeper had gone to take tea therefore, he was waiting for his return, whereas, in the meanwhile, Gulistan CW 1 had also reached there for making some purchases and there is nothing odd about this explanation as to the purchase of certain goods. It is also noteworthy to mention that the complainant suspected that Gulistan C.W. 1, had been won over and was not willing to produce him as an eye-witness in the witness-box but it was on the initiation of the Court that Gulistan appeared as a Court witness. His statement is consistent with that of Ghulam Qasim, P.W. 8, the other eye-witness. They had been cross-examined at length but their credit could not be shaken and on each material particular, their statements are consistent. Both were cross-examined as to the place of the arrest of the appellant which was correctly described by them. Both were cross-examined as to their presence near the shop of Rustam, they said that they had come to make certain purchases from the shop of Rustam, Gulistan CW 1 also stated that even the deceased Subah Sadiq had also come for making certain purchases because after the occurrence, the mother of the deceased reached the spot and during course of wailing, she remarked that her deceased son had come to make certain purchases when he met his end. Furthermore, it was a daylight occurrence committed by a single accused. There is no question of mistaken identity in this case because the appellant was very well known by the witnesses. Although, such type of testimony hardly requires any corroboration but to further strengthen its case, the prosecution also placed reliance upon the recovery of knife. The recovery of knife P.4 cannot be doubted only on account of discrepancy as to the mode of recovery. In my view, it was just a slip that the investigating officer, stated that the appellant had led the police and got the knife recovered. Both the witnesses namely Ghulam Qasim P.W. 8 and Gulistan C.W. 1 are witnesses to the arrest and the subsequent recovery of crime weapon from the appellant. They were cross-examined at length about the motive, manner of arrest and recovery and their statements are consistent because both deposed that the appellant had been arrested near the Mor Abbasian from where the recovery had also taken place. The knife recovered was found to be stained with human blood. The upshot of the above discussion is that the prosecution has established its case beyond any shadow of doubt and, therefore, the conviction of the appellant cannot be interfered with. Accordingly, this appeal is dismissed. Adverting to the revision petition seeking enhancement of sentence from life imprisonment to death, I do not find any merit in it because in this case, the learned Sessions Judge had rightly imposed the lesser penalty because according to the prosecution itself, the question of family honour was involved and following our jurisprudence, the family honour is considered to be a mitigating circumstance. The learned trial Court has also taken into consideration the tender age of the appellant but I need not enter into that controversy because the family honour by itself is sufficient to justify the imposition of lesser penalty, hence the revision petition is dismissed. Adverting to the appeal preferred by the appellant calling in question his conviction under section 13 of the Arms Ordinance, I am of view that there is no merit in the appeal, the same is, therefore, dismissed because the recovery of knife stands proved on the record. However, I would direct that the sentences would run concurrently. The appellant has also been allowed benefit of section 382-B, Cr.P.C. which shall remain intact but however, one aspect with regard to the awarding of compensation under section 544-A, Cr.P.C. requires examination by this Court. Following the judgment of the Honourable Supreme Court reported as The State v. Rab Nawaz and another P L D 1974 SC 87, it is mandatory to award compensation. Accordingly, I direct that in addition to the fine, the appellant shall also pay a sum of Rs. 10,000 (ten thousand) as compensation to the heirs of the deceased and in default of its payment, the appellant shall suffer further simple imprisonment for a term of six months. With these observations, both the appeals and the revision are disposed of. N.H.Q./M-2068/L Appeals and revision dismissed.